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Getting a Property Settlement when Married or in a De facto Relationship.

When getting a property settlement, it makes no difference whether or not you are married, provided you meet the definition of being in a de facto relationship.

You should seek legal advice as soon as you separate from a marriage or de facto relationship to ensure that you know where you stand and what you need to be aware of to avoid problems in the future. You do not necessarily have to immediately start dealing with your property settlement however it is advisable to make sure there is nothing urgent you need to do. As everyone’s circumstances are difference you should seek you own individual legal advice.

Between separation and divorce you should consider the things such as your Will, your superannuation binding death nominee and what your wishes would be should you die, prior to a property settlement or divorce having taken effect.

NO! The actual divorce doesn’t usually take place until after the property settlement has been dealt with. Once parties separate, they can immediately begin to make arrangements for their separated financial affairs. A lawyer will usually advice you not to apply for a divorce until you have dealt with your property settlement.
Once you have divorced you only have twelve (12) months to apply to the court for a property settlement if you cannot reach agreement between the two of you. This does not necessarily mean that you cannot bring an application to the Court after twelve (12) months of divorce, it just means you have to satisfy certain criteria in order to be able to do so.
Generally provided you have a good reason as to why the property settlement was not dealt with within twelve (12) months or you can show that you will suffer hardship if the Court does not accept our application an ‘out of time’ application will be allowed. This should not be relied upon and the safer course of action is to ensure that you comply with the time limits.
There is actually no strict definition of a de facto relationship and factors such as the length of time, financial circumstances and the existence of children will be taken into account. Generally, if you have lived together for two years or more or have children together the court will consider that you were in a de facto relationship and treat your property matter the same way they would if you have been married.
The only difference in the way a de facto relationship breakdown and a divorce differ is the time limit for sorting out property matters. Within the first 2 years following the breakdown of a de facto relationship an application may be brought to the Court to have the property matter dealt with. The time limit for married couples is 12 months after a divorce becomes final (a divorce cannot be applied for until the parties have been separated for 12 months). In each case it is not impossible to bring an ‘out of time’ application, however you will need to establish a reason for the delay or some other justification for the Court to make an Order adjusting property interests.
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